Central Administrative Tribunal - Cuttack
Dandasi Nayak vs Cpwd on 24 January, 2019
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 881 of 2014 OA No. 882 of 2014 OA No. 883 of 2014 OA No. 893 of 2014 OA No. 908 of 2014 OA No. 911 of 2014 OA No. 912/2014 OA No. 79 of 2015 Present: Hon'ble Mr. Gokul Chandra Pati, Member (A) Hon'ble Mr.Swarup Kumar Mishra, Member (J) OA No. 881 of 2014 - Dandasi Nayak, aged about 57 years, S/o Mohan Nayak, At/PO - Kurala, PS - Odagaon, Dist. - Nayagarh, at present continuing as Sweeper in the office of the Assistant Engineer, Bhubaneswar Central Sub Divsiion No.1, CPWD, Bhubaneswar-20, Dist. Khurda.
OA No. 882 of 2014 - Sarbeswar Behera, aged about 38 years, S/o Krushna Chandra Behera, At/PO/PS - Mancheswar, Dist. - Khurda at present continuing as Belder in the office of the Assistant Engineer, Bhubaneswar Central Sub Divsiion No.4, CPWD, Bhubaneswar-20, Dist. Khurda.
OA No. 883 of 2014 - Niranjan Dash, aged about 44 years, S/o Nath Dash, At-Masurupur, PO -
Darakundi, PS - Kuakhia, Dist. - Jajpur, at present continuing as Belder in the office of the Assistant Engineer, Mundali Central Sub Division, CPWD, Mundli, Dist. - Cuttack.
OA No. 893 of 2014 - Banka Bihari Moharana, aged about 41 years, S/o Chakradhar Moharana, At
- Nakhaura, PO - Gopinathpur, PS - Lingaraj, Dist.
- Khurda, Dist. - Cuttack at present continuing as Belder in the office of the Assistant Engineer, Bhubaneswar Central Sub Division No.1, CPWD, Bhubaneswar - 12, Dist. _ Khurda.
OA No. 908 of 2014 - Rajkishore Maharana, aged about 39 years, S/o Late Sadananda Moharana, At-
Hirapur, PO - Gada Srirampur, PS - Balianta, Dist.
- Khurda, Dist. - Cuttack at present continuing as Belder in the office of the Assistant Engineer, Bhubaneswar Central Sub Division NO.3, CPWD, Bhubaneswar-12, Dist. - Khurda.
OA No. 911 of 2014 - Rabinarayan Mohapatra, aged about 46 years, S/o Late Kanduri Rana, At/PO - Sinduria, PS - Ranpur, Dist. - Nayagarh at present continuing as Belder in the office of the Assistant Engineer, Bhubaneswar Central Sub Division No.II, CPWD, Bhubaneswar, Dist. -
2Khurda.
OA No. 912 of 2014 - Prafulla Kumar Das, aged about 50 years, S/op Purna Chandra Das, At/PO -
Jagannathpur, PS - Balianta, Dist. - Khurda, Dist.
- Cuttack at present continuing as Valve Operator in the office of the Assistant Engineer, Bhubaneswar Central Sub Division No.3, CPWD, Bhubaneswar-12, Dist. - Khurda.
OA No. 79 of 2015 - Kedar Ghadei, aged about 47 years, S/o Late dhani Ghadei, At-Balakati, (Nahaka Sahi), PO /PS - Balianta, Bhubaneswar, Dist - Khurda at present continuing as Sweeper in the office of the Assistant Engineer, Bhubaneswar Central Sub Division No.3, CPWD, Bhubaneswar-
20, Dist.- Khurda.
......Applicants.
VERSUS
1. Union of India, represented through its Secretary to Government of India, Ministry of Urban Housing Development Department, Lodhi Road, New Delhi - 1.
2. Director General (Works), CPWD, Nirman Bhawan, New Delhi - 110001.
3. Additional Director General, Eastern Zone, CPWD, 234/4 AJC Bose Road, Nizam palace, Kolkata - 20.
4. Chief Engineer (Civil), Central Public Works Department, Nirman Bhawan, Pokhariput, Bhubaneswar, Dist. - Khurda.
5. Superintendent Engineer (Civil), Central Public Works Department, Nirman Bhawan, Pokhariput, Bhubaneswar, Dist. - Khurda.
6. Executive Engineer (Civil), Central Public Works Department, Bhubaneswar Central Division No.III, Unit-8, Bhubaneswar-12.
......Respondents.
For the applicant : Mr.R.N.Acharya, counsel
For the respondents: Mr.S.B.Mohanty, counsel
Heard & reserved on (for all OAs except OA No. 912/2014): 10.1.2019
Heard & reserved on (for OA No. 912/2014): 16.1.2019
Order on : 24.1.2019
O R D E R
Per Mr.Gokul Chandra Pati, Member (A)
As in these OAs the dispute and the issues for consideration are 3 similar and common, these OAs were taken up for consideration and hearing together on the request of the learned counsels for both the parties. Accordingly, all the OAs except OA No. 912/2012 were heard together and order reserved on 10.1.2019 and OA No. 912/2014 was heard and order reserved on 16.1.2018. These OAs are disposed of by this common order, with OA No. 881/2014 being taken as the leading OA for the purpose of this order. The applicants in these OAs were working as casual labourer with temporary status under the Central Public Works Department and their grievance is that they were not regularized in service in spite of long years of working as casual labourer.
2. The OA No. 881/2014 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief :
"(i) The order of rejection dated 7.10.2014 under Annexure 7 may kindly be quashed.
(ii) The respondents may kindly be directed to regularize the service of the applicant in a permanent cadre with effect from their date of joining in any Group D/MTS category post.
(iii) Direction may kindly be issued to the respondents to grant all service benefit to the applicant after regularization of service within a stipulated period.
(iv) The respondents may kindly be directed to grant DCRG, pensionary benefit, GPF benefit and other statutory benefit of a regular employee as the applicant retired from his service w.e.f.
31.1.2015."
3. The facts in brief, in OA No. 881/2014 are that the applicant was engaged as a casual labourer (Sweeper) under the respondents Central Public Works Department (in short CPWD) w.e.f. 27.5.1989 in the office of the respondent No. 6. The applicant was granted temporary status by the respondent No.4 on 16.11.2004. On 15.11.2013 the applicant submitted a representation (Annexure A/5 to the OA) with a request for regularisation of his services in a permanent cadre/post. When no action was taken on the representation, applicant filed OA No. 300/2014 before this Tribunal, which was disposed of vide order dated 6.5.2014 (Annexure-6 to the OA) with a direction to the respondent No.4 to consider the representation of the applicant and pass a reasoned and speaking order within a period of 60 days. The applicant vide order dated 5.6.2014, moved the authorities along with the copy of the order of this Tribunal. Thereafter, the respondent No.3 passed the order No. 3884 dated 7.10.2014 (Annexure-7 to the OA), rejecting the claim of the applicant. The OA has been filed challenging the 4 order dated 7.10.2014 passed by the respondents.
4. The brief facts in other OAs are similar, as discussed below:-
OA No. 882 of 20144.1 In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted in paragraph 2 above. The brief facts are that the applicant was engaged as a casual labourer (Belder) under CPWD w.e.f. 14.4.1991 and was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He also submitted a representation dated 15.11.2013. When no action was taken by the respondents, the applicant filed OA, which was disposed of with direction to the respondents to dispose of the representation. The respondents accordingly passed the order dated 7.10.2014 (Annexure-8 to the OA) on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.OA No. 883 of 2014
In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief, are that the applicant was engaged as a casual labourer (Belder) under CPWD w.e.f. 12.5.1991 and he was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He also submitted representation dated 15.11.2013, which was disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
OA No. 893 of 2014In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief, are that the applicant was engaged as a casual labourer (Belder) under CPWD w.e.f. 1.7.1992 and was granted temporary status on 16.11.2004. He also submitted representation dated 15.11.2013, which was disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
5 OA No. 908 of 2014In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief are that the applicant was engaged as a casual labourer (Belder) under CPWD w.e.f. 1.2.1992 and was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He submitted representation dated 15.11.2013, which was disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
OA No. 911 of 2014In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief, are that the applicant was engaged as a casual labourer (Belder) under CPWD w.e.f. 1.2.1992 and was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He also submitted representation dated 15.11.2013, which was disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
OA No. 912 of 2014In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief, are that the applicant was engaged as a casual labourer (Valve Operator) under CPWD from 1.4.1989 and was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He submitted representation dated 15.11.2013, which was disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
OA No. 79 of 2015In this OA the relief prayed for is identical to the relief in OA No. 881/2014 as quoted above. The facts in brief, are that the applicant was engaged as a casual labourer (Sweeper) under CPWD w.e.f. 28.1.1995 and was granted temporary status on 16.11.2004 like the applicant in OA No. 881/2014. He also submitted representation dated 15.11.2013, which was 6 disposed of as per the direction of this Tribunal in the first OA filed by the applicant by the order dated 7.10.2014 (Annexure-7 to the OA) passed by the respondents, rejecting the representation on the same ground as in OA No. 881/2014. This order is under challenge in the present OA.
OA No. 881 of 20145. Coming back to the leading case, after the impugned order dated 7.10.2014 was passed, the applicant retired from service after attaining the age of superannuation w.e.f. 31.1.2015 as a casual labourer with temporary status, without regularization of his service. Sine he was not given post retirement benefit at par with regular employees, the applicant being aggrieved, filed this OA challenging the order dated 7.10.2014, requesting for regularization with consequential benefits.
6. Upon notice, the respondents filed their counter on 21.4.2015, opposing the OA and stating that the applicant had been relieved w.e.f. 31.1.2015 on retirement with temporary status and hence, his claim for regularisation of his service has become meaningless. The averment of the applicant that he was continuing against a regular sanctioned post, has been denied, stating that the applicant was not engaged against any sanctioned post and he was continuing under Work Charged Establishment. It is further stated in the counter that the contention of the applicant that he was being engaged w.e.f. 27.5.1989 is not correct since no document/record is available to show that the applicant was being engaged w.e.f. that date. Regarding the main claim for regularisation, para 9 of the counter states as under :
"That in reply to averments made under para 4.3 to 4.6 of the OA it is humbly submitted that temporary status in an initial cadre of Group D under Work Charge Establishments was granted to the applicant and other similarly situated temporarily as per para 2.02.1 of CPWD WORK CHARGED ESTABLISHMENT MANUAL 2000 with the conditions mentioned thereon. Further as per sub para (IV) of para 4 at page 4 of the CPWD WORK CHARGED ESTABLISHMENT MANUAL 2000 it has been stipulated that such casual labour, who acquired temporary status will not however be brought on the permanent establishment unless they are selected through Regular Selection Process of Group D Post. Therefore the claim of the applicant that his service should be regularized because of the temporary status is not tenable in view of the above stated provisions incorporated in the Work Charged Establishment Manual."
7. It is further stated in the counter that citing the case of Income Tax department, where some of the causal labourers were regularised, is not helpful as it is not binding on the respondents and that the case laws cited in the OA are stated to be inapplicable in the present OA.
78. At the time of hearing learned counsel for the applicant submitted that another OA (OA No. 894/2014) with similar facts has been disposed of by the Tribunal, wherein vide order dated 4.4.2016 of this Tribunal in OA 894/2014, the impugned order dated 17.10.2014 (similar to the order dated 7.10.2014 in OA No. 881/2014) was quashed and the respondents were directed to reconsider the matter of regularisation of service in the light of observations in the said order. Another argument emphasized by learned counsel for the applicant was that as per para 53 of the judgment in the case of State of Karnataka & others vs. Umadevi & others reported in AIR 2006 SC 1806, it is mandatory on the part of the respondents to have considered the regularisation of the applicant, who was engaged as a casual labourer for long years and the applicant was not engaged illegally. The applicant was irregularly appointed and not illegally, since he was qualified for holding regular Group 'D' post under the respondents. In a nutshell, the learned counsel wanted the benefit of the order passed by the Tribunal in a similar case in OA No. 894/2014 based on para 53 of the judgment of Hon'ble Apex Court in Umadevi's case.
9. Learned counsel for the respondents opposed the arguments stating that as claimed in the OA the applicant was engaged as casual labourer in 1989 without mentioning as to whether there was any vacant post, against which the applicant was appointed. He further submitted that the applicant was appointed in work charge establishment of the CPWD, without any sanctioned post. From 2004, the applicant along with others who are parties in other OAs, were given temporary status as per the rules applicable for the work charge establishment. It was further stated that the appointment of the applicant was illegal. Therefore para 53 of the judgment of Hon'ble Apex Court in Umadevi case will not apply in this case.
10. We have considered the rival submissions and also perused the pleadings on record and the case laws, citations/written notes filed by the learned counsels for both the parties. Learned counsel for the applicant has also submitted a written note enclosing the list of cases as under: -
i. Director General, Doordarshan,....., & Ors. -vs- Manas Dey & Ors. [2006 SCC (L&S) 1084] ii. Union of India & Anr. -vs- Mohan Pal & Ors. [2002 SCC (L&S) 577] iii. State of Punjab & Ors. -vs- Kulwant Singh & Ors. [2005 I LLJ 329] iv. State of Karnataka & Ors. -vs- M.L.Keshari & Ors. [(2010) 2 SCC (L&S) 826] v. Union of India -vs- R.S.Paramasivam & Ors. [2014 I LLJ 633] 8 vi.Nihal Singh & Ors. -vs- State of Punjab & Ors. [AIR 2013 SC 3547] vii. Tamilnadu Terminated Full Time Temporary LIC Employees Association - vs- Life Insurance Corporation of India & Ors. [2015 II LLJ 335]
11. The respondents' counsel has also submitted written notes in OA No. 912/2014, stating that the applicant being a non-Matriculate 8th pass before revising his wages in pursuance to the 6th Pay Commission report w.e.f. 1.1.2006, he was sent for training. That cannot be a ground for claiming regularisation. It is further stated that unless the casual work charged employees are selected through regular process of selection for Group 'D' post, their services cannot be regularized. Regarding the submission that 2 out of 3 vacancies in Group 'D' cadre casual labourers can be considered for such employees, it was stated that prior to the claim of these employee, the surplus regular Group 'D' staffs have to be considered first against the vacancies as per the rules. Hence, the applicant cannot claim regularisation in absence of any vacancy under the respondents. Regarding the regularisation in Income Tax Department, it was stated that in Income Tax Department the regularisation was done as per the order of CBDT and the concerned employees were Matriculate. But in the present case the applicant is neither a Matriculate nor ITI qualified.
12. Before proceeding further, it is seen that the impugned order dated 7.10.2014 has referred to the following grounds for rejecting the claim:-
"Accordingly, the respondent authorities are required to implement the ibid orders of the Hon'ble CAT, Cuttack Bench, Cuttack. In the said circumstances the respondent authorities considered the case of the petitioner in the light of the Hon'ble Supreme Court in its judgment in the matter of Smt. Uma Devi vs State of Karnataka delivered on 10.4.2006 has stated that:
'When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.' Thus, it is stated that the said guidelines forbids to bring such casual labourer in permanent establishment unless they are selected through regular selection process for Group D post. Group D posts are to be filled up in accordance with the extant recruitment rules. Since Shri Dandasi Nayak was engaged on casual basis and conferred temporary status but not 9 recruited through regular selection process. He cannot be considered for regularisation.
In view of above submission, it is clear that the petitioner is not eligible for regularization of services."
13. From the above, it is seen that the main ground on which the representation of the applicant was rejected vide order dated 7.10.2014 is that the vacant Group 'D' post was to be filled up in accordance with the Recruitment Rules. Since the applicant was not appointed through regular selection process he cannot be considered for regularisation in the light of the law laid down by Hon'ble Apex Court in Umadevi's case. The question to be decided in this OA, is whether the grounds taken by the respondents to reject the claim of the applicant are legally sustainable.
14. On perusal of the order dated 4.10.2016 passed by the Tribunal in OA No. 894/2014, which was referred by the applicant's counsel, it is seen that the case of the applicant in that OA was almost identical, except for some minor differences in factual details. Similar ground was taken by the respondents as quoted in para 11 above, while rejecting the claim of the applicant in OA No. 894/2014. Considering the issue, the Tribunal vide order dated 4.10.2016 in the aforesaid OA held as under:-
"14. We have come across the OM dated 11.12.2006 issued by the DOP&T and for purpose of convenience, this OM is quoted below:
"1. The undersigned is directed to say that the instructions for engagement of casual workers enunciated in this Department's OM No. 49014/2/86 Estt.(C) dated 7111 June, 1988 as amplified from time to time, inter-alia provided that casual workers and persons on daily wages should not be recruited for work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which is not of full time nature for which regular post can not be created. Attention is also invited to this Department's OM No. 28036/1/2001- Estt. ( D) dated 23 rd July, 2001 wherein it was provided that no appointment shall be made on ad hoc basis by direct recruitment from open market.
2. A Constitution bench of the Supreme Court in civil appeal No. 3595- 3612/1999 etc. in the case of Secretary State of Karnataka and Ors. Vs. Uma Devi and others has reiterated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of the aforesaid judgement dated 10.4.2006 has directed that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The Apex Court has clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions 10 of the Constitution, illegality cannot be regularized.
3. Accordingly the copy of the above judgement is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court."
15. Para 2 of the aforesaid OM clearly mentions the directions of Hon'ble Supreme court in paragraph 44 of the judgment in the Uma Devi's case decided on 10.4.2006. This direction is that the Union of India, the State Governments and their Instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory requirement rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals,. Further, if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, such illegality cannot be regularized.
16. We are quoting below paragraph 44 of judgment of the Constitution Bench of Hon'ble Supreme Court delivered in Secretary, State of Karnataka and Ors. -vs- Uma Devi and Ors. case decided on 10.4.2006 and reported in AIR 2006 SC 1806 :
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.
In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
17. It is, therefore clear that the Hon'ble Apex Court has directed the Union Government and State Government and also their instrumentalities to take steps for regularization of the services of persons who were irregularly appointed against sanctioned posts and have worked for 10 years or more. Such direction cannot apply to the cases where illegality has been committed or there has been violation of the provisions of the Constitution in the appointment. In case of 'litigious employment' where the continuance of a person in a post is under the orders of the Court, the directions for regularization will not apply. In the present case, it is quite evident that applicant has been continuing as a Casual Worker since the year 1984 and in 2004 temporary status was also conferred upon him,. As it appears from the record, the Department has utilized his services continuously and there 11 has not been any intervention of the Courts in the matter of his continuance, therefore the respondent department cannot throw out his case 'lock, stock and barrel' when it comes to matter of regularization. The claim for regularization must be considered as per the directions issued by the DOP&T in their letter dated 11.12.2006 which has been taken on record and also quoted in full in the foregoing paragraphs. The respondent department cannot reject the case of applicant by quoting only one part of Uma Devi's judgment because based upon para 44 of the same judgment, the DOP&T had issued certain specific guidelines for regularization to be followed by all the Departments of the Government. The learned counsel for applicant has, therefore, correctly pleaded that after the pronouncement of the judgment of the Hon'ble Apex Court in Uma Devi's case and also consequent to issuance of instructions by the DOP&T vide its letter dated 11.12.2006, the respondent department has not taken any steps for implementation of the said instructions/guidelines. Therefore, we are of the considered view that the issue in hand regarding regularization of the services of the applicant, has apparently not been properly considered in the light of the said guidelines.
18. The matter of regularization of Casual Labour and Daily Wagers as well as Ad hoc employees has been elaborately clarified in the matter of State of Karnataka and Ors. Vs. M.L. Kesari and Ors. decided on 3rd August, 2010 by the Hon'ble Apex Court as reported in (2010) 2 SCC (L&S) 826. The relevant part of this judgment is quoted below:
"8. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision.
9. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one- time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer 12 concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
19. In view of the discussion above, and particularly in view of the judgments of the Hon'ble Apex Court in the matter, we have no hesitation to hold that the respondent - Department have not considered the prayer for regularization of the appcliant in conformity with the extant guidelines, and as per the law established in this regard in the pronouncements of the Hon'ble Apex Court. We, therefore, quash the order dated 7.10.2014 issued by the respondents and direct the respondents to reconsider the matter of regularization in the light of the observations of the Tribunal given above and communicate the decision to applicant in a speaking order within a period of 90 days of receiving a copy of this order."
15. In the OA No. 894/2014, the respondents had rejected the claim of the applicant in that OA on the basis of the judgment in Umadevi's case. This ground was not accepted by the Tribunal as would be clear from the order dated 4.10.2016, as quoted above. The averments/grounds of the respondents for rejecting the claim of the present applicant are that the applicant was not appointed against a sanctioned post and that he was not selected as per the procedure laid down under the Recruitment rules and hence, in accordance with the observations made in the judgment in Umadevi's case in the following para (which was quoted in the impugned order dated 7.10.2014) as under:-
"When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has 13 held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."
The observations as above are subject to exception as mentioned in para 44 of the judgment in Umadevi's case, which is quoted in the order dated 4.10.2016 of the Tribunal in OA No. 894/2014 as discussed in paragraph 14 of the order above. As per the ratio of the judgment, while the general rule is not to regularize the services of the casual/ temporary/daily wage employees, but their case will be considered for regularization as a one-time measure, provided such employees continue for more than 10 years without any interim order of the Court and their appointment should not be illegal, i.e. they should be qualified for the post and sanctioned post should be available to consider their case. This principle has been reiterated in the judgment of Hon'ble Apex Court in the case of M.L. Kesari (supra) as stated in the order dated 4.10.2016 of the Tribunal.
16. In the case of the present applicant, the respondents have averred that the applicant was engaged under the 'Work Charged Establishment' and his engagement was not against any sanctioned post. The provisions of the CPWD Work Manual as applicable for the 'Work Charged Establishment' have been attached by the respondents at Annexure R/1 of the counter, as stated in para 9 of the counter. It is seen from these provisions that the following stipulations regarding regularization are available in these provisions in the CPWD Work Manual, which is also applicable for the applicant, being engaged under 'Work Charged Establishment' :
"(x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by Department of Personnel & Training in this regard. While considering such regularisation, a casual worker may be given relaxation in upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post ..................................................................................................
8. Procedure for filling up of Group 'D' posts I) Two out of every three vacancies in Group 'D' cadre in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel & Training from among the casual workers with temporary status. However, regular Group 'D' staff rendered surplus for any reason will have prior claim for absorption against existing future vacancies......................................."
17. Hence, as per the provisions in the CPWD Works Manual as quoted in para 14 above, the applicant, after being given temporary status as a casual worker, was eligible for being considered for regularization before his 14 superannuation and he had a right for being considered for such regularization. After the judgment in Umadevi's case on 10.4.2006, the applicant had also the right to be considered under para 44 of the judgment as quoted in para 14 above in view of the provisions of para 8 of the CPWD Works Manual and since he had completed more than 10 years of service as a casual worker. There is nothing on record to show that his case for regularization was considered by the respondents before his superannuation in accordance with the provisions of the para 8 of the CPWD Works Manual (Annexure-R/1) and as per the judgment of Hon'ble Apex Court in Umadevi's case.
18. Learned counsel for the applicant has enclosed copy of seven judgments with his written submissions as mentioned below:-
i. Director General, Doordarshan,....., & Ors. -vs- Manas Dey & Ors. [2006 SCC (L&S) 1084] ii. Union of India & Anr. -vs- Mohan Pal & Ors. [2002 SCC (L&S) 577] iii. State of Punjab & Ors. -vs- Kulwant Singh & Ors. [2005 I LLJ 329] iv. State of Karnataka & Ors. -vs- M.L.Keshari & Ors. [(2010) 2 SCC (L&S) 826] v. Union of India -vs- R.S.Paramasivam & Ors. [2014 I LLJ 633] vi.Nihal Singh & Ors. -vs- State of Punjab & Ors. [AIR 2013 SC 3547] vii. Tamilnadu Terminated Full Time Temporary LIC Employees Association - vs- Life Insurance Corporation of India & Ors. [2015 II LLJ 335]
19. In first two cases, the dispute was grant of temporary status as per the 1993 scheme of the DOPT. In this OA, the applicant was undisputedly granted temporary status vide order dated 16.11.2004, which has not been challenged in this OA. Hence, these judgments will be inapplicable to the present OA. In the case of Kulwant Singh (supra), it was held in the context of the policy of State of Punjab, that the work charged employees after working for more than 10 years, justifies creation of post as per the policy for regularizing their services. In this OA, the issue was not creation of post to consider regularization of service of the work charged employees in view of the para 8 of the CPWD Works Manual (Annexure R/1). The judgment of Hon'ble Apex Court in the case of M.L. Kesari (supra) has been relied upon by this Tribunal while adjudicating the OA No. 894/2014 as discussed in para 12 above. The present OA is squarely covered by the ratio of the judgment in the case of M.L. Kesari (supra). In the case of R. Paramasivam (supra), the dispute related to whether the service of the employees will be deemed to be regularized in view of the specific rules under which they were engaged and the case is factually distinguishable. In the case of Nihal Singh 15 (supra), State of Punjab was directed to regularise the services of the employees who were appointed under the provisions of the Police Act, 1861 and the case is factually distinguishable.
20. In the circumstances as discussed above and taking into account the fact that the facts in this OA are similar to the facts in OA No. 894/2014, we are of the considered opinion that the order dated 4.10.2016 passed by this Tribunal in OA No. 894/2014 squarely applies to the present OA. Therefore, the grounds mentioned in the impugned order dated 7.10.2014 for rejecting the case of the applicant are not legally sustainable and the question framed in para 13 of this order is answered accordingly. Hence, the impugned order (the order dated 7.10.2014), rejecting the case of the applicant for regularization of his service, is set aside and quashed and the respondents are directed to reconsider the case of the applicant for regularization from the date he was eligible to be considered for such regularization in accordance with the law after being given temporary status, taking into consideration the observations in this order and to extend all consequential service benefits as per the rules, if he will be found suitable/fit for regularization as per the para 8 of the CPWD Works Manual. The decision of the respondents in pursuance to this direction shall be communicated by the respondents to the applicant within 90 days of receiving a copy of this order.
21. This OA and other OAs being considered alongwith this OA, are allowed in part in terms of the directions in para 17 above. No order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI)
MEMBER (J) MEMBER (A)
I.Nath
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